State v. Duran

2003 NMCA 112, 76 P.3d 1124, 134 N.M. 367
CourtNew Mexico Court of Appeals
DecidedSeptember 3, 2003
Docket22,611
StatusPublished
Cited by11 cases

This text of 2003 NMCA 112 (State v. Duran) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Duran, 2003 NMCA 112, 76 P.3d 1124, 134 N.M. 367 (N.M. Ct. App. 2003).

Opinion

OPINION

ALARID, Judge.

{1} This appeal requires us to decide whether Defendant’s constitutional right to be free from unreasonable searches and seizures was violated when, in the course of a routine traffic stop, Defendant and her passenger were separated and repeatedly questioned about their itinerary. We hold that the questioning of Defendant and her passenger was neither reasonably related to the purposes of the stop nor based upon particularized and objective factors giving rise to a reasonable suspicion that criminal activity was afoot. We further hold that Defendant’s consent to a subsequent search of the car was tainted by the unconstitutional questioning. We therefore reverse the trial court’s order refusing to suppress marijuana subsequently seized during a search of Defendant’s ear.

BACKGROUND

{2} On the afternoon of December 10, 2000, Defendant, Jaclyn Duran, and a passenger, Kate Williams, were driving northeast on Highway 26 in a 1987 Chevrolet Camaro hatchback. The car had a temporary registration permit affixed to the inside of the upper left-hand corner of the hatchback window. Defendant passed New Mexico State Police Officer Beau Johnston, whose car was parked on the side of Highway 26. Officer Johnston pursued Defendant’s car for the purpose of determining why the car did not display a license plate. As he caught up to Defendant’s car he noticed a piece of paper in the upper left corner of the rear window. He assumed it was a New Mexico temporary permit, but was not sure.

{3} After stopping Defendant’s car, Officer Johnston parked his patrol car approximately twenty-five to thirty feet behind Defendant’s car. He left his patrol car and approached Defendant’s car from the passenger side. 1 Speaking through the open passenger-side window, Officer Johnston explained that he had stopped Defendant’s car because the temporary registration permit was placed too high on the rear window to be visible. He asked Defendant for her driver’s license, car registration, and proof of insurance; he asked Williams for identification as well. Officer Johnston noticed a jack, some assorted tools, an overnight bag, and a cellular phone plugged into the console. He also noticed the slight odor of gasoline. He looked at the temporary permit, which stated that Defendant was the purchaser of the ear. Officer Johnston also noted that the temporary permit had not expired.

{4} Defendant was unable to produce proof of insurance. Officer Johnston directed Defendant to accompany him back to his patrol car. Williams remained in the car. On the way back to the patrol ear, Officer Johnston pointed out to Defendant how the position of the temporary permit made it hard to read.

{5} At the patrol car, Officer Johnston reviewed the bill of sale that Defendant had produced. He noticed that it was handwritten, apparently with a “Sharpie” marker. Although most bills of sale he encountered were typewritten or computer-generated, it was not unusual to encounter a handwritten bill of sale. As he reviewed the paperwork, he asked Defendant about her itinerary. She explained that she and Williams were on their way to Las Cruces from Silver City. In Officer Johnston’s view, his initial questioning of Defendant regarding her itinerary was “casual conversation.”

{6} Officer Johnston was aware that Highway 26 is an indirect route from Silver City to Las Cruces. The most direct route from Silver City to Las Cruces is to take Interstate 10 east from Deming. Officer Johnston knew that by taking Highway 26, Defendant would bypass a twenty-four-hour Border Patrol checkpoint on 1-25 north of Las Cruces.

{7} Officer Johnston asked Defendant why she had taken an indirect route. Defendant explained that she had never gone to Las Cruces by taking Highway 26 through Hatch, and she wanted to see how long it took. Officer Johnston left Defendant standing by his patrol car and returned to Defendant’s car to compare the VIN on the bill of sale with the VIN on the front dashboard of Defendant’s car. He asked Williams where she and Defendant had been and where they were going. Williams responded that they had left Las Cruces and were on their way to Albuquerque to see some friends. Officer Johnston asked Williams where she and Defendant were coming from. Williams responded “Las Cruces.” Officer Johnston asked Williams if she and Defendant had been anywhere else that day. Williams responded “no.” Officer Johnston then asked Williams to identify more specifically her Albuquerque friends. Williams told Officer Johnston that her friends were Derrick and Jesse, who live on San Mateo in Albuquerque. Officer Johnston then asked Williams if Defendant knew Derrick and Jesse. Williams replied that she was not sure and that she did not know whom Defendant was planning to see.

{8} Officer Johnston returned to his patrol car, where Defendant was standing. He ran a warrant check on Defendant and Williams and began writing out a citation for failure to provide proof of insurance and a warning citation for improper display of the temporary permit. The returns on the warrant checks were “clear.” Officer Johnston again asked Defendant about her itinerary. Defendant once again stated that she was on her way to Las Cruces from Silver City. She also mentioned that she had been visiting relatives in Silver City. She could not provide them specific street addresses. She explained that she and Williams were just out for a drive and wanted to see how long it would take to get to Las Cruces via Hatch.

{9} Officer Johnston asked Defendant if there had been a co-signer on the purchase of the ear. Defendant said that her'uncle, Roman Garcia had co-signed. Officer Johnston then pointed out that the signature on the bill of sale was for Ramon, not Roman, Garcia. Defendant replied that Officer Johnston was correct, but that she called her uncle Roman. Officer Johnston also asked Defendant about the price she had paid for the car and what year it was manufactured. Defendant hesitated, and suggested that the car was a 1987. She stated that she had paid $5,500 for the car.

{10} Officer Johnston noticed that Defendant, who was standing outside in the cold, windy December weather, seemed more nervous than was typical for a motorist in a traffic stop.

{11} Officer Johnston returned to Defendant’s car and once again asked Williams about them travel plans. Williams again responded that she and Defendant were on their way from Las Cruces to Albuquerque. Officer Johnston returned to the patrol car, where he returned all of the documents to Defendant, and had her sign the citations. Officer Johnston asked Defendant whether she would mind answering a few more questions. When Defendant said she would not mind, Officer Johnston asked her yet again about her itinerary. She repeated her previous story, adding that she and Williams had spent the night with an aunt in Silver City. Defendant could not recall her aunt’s address but remembered the aunt lived by a school.

{12} The foregoing circumstances led Officer Johnston to begin wondering whether Defendant and Williams were involved in criminal activity. Officer Johnston asked Defendant and Williams if there were any drugs in the car and both answered that there were not.

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Related

State v. Funderburg
2008 NMSC 026 (New Mexico Supreme Court, 2008)
State v. Duran
2005 NMSC 034 (New Mexico Supreme Court, 2005)
State v. Ponce
2004 NMCA 137 (New Mexico Court of Appeals, 2004)
State v. Prince
2004 NMCA 127 (New Mexico Court of Appeals, 2004)
State v. Dang
2004 NMCA 067 (New Mexico Court of Appeals, 2004)
State v. Garcia
2004 NMCA 066 (New Mexico Court of Appeals, 2004)
State v. Vandenberg
2003 NMSC 030 (New Mexico Supreme Court, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
2003 NMCA 112, 76 P.3d 1124, 134 N.M. 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-duran-nmctapp-2003.